Clayborne v. Oce Business Services

08-4579-cv
C layborne v. O C E B usiness Serv.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULING S BY SUM M AR Y O RD ER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUM M AR Y O RD ER FILED O N O R A FTER
J A N UA RY 1, 2007, IS PER M ITTED A ND IS G O VER NED BY F EDERAL R ULE OF A PPELLATE P RO CEDU RE 32.1 A N D TH IS C O U R T ’ S
L OC AL R ULE 32.1.1. W H EN CITIN G A SU M M A RY O RD ER IN A D O CU M EN T FILED W ITH TH IS C O U R T , A PA RT Y M U ST CITE
EITHER THE F EDERAL A PPEND IX O R A N ELECTRONIC D ATAB ASE ( W ITH TH E N O TA TIO N “ SUM M AR Y O RD ER ”). A PARTY
CITING A SUM M AR Y O RD ER M UST SERVE A C OPY O F IT ON A NY PARTY N OT REPRESENTED BY CO UN SEL .

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 18th day of
June, two thousand and ten.

PRESENT:
ROGER J. MINER,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_______________________________________________

Glen M. Clayborne,

Plaintiff-Appellant,

v. No. 08-4579-cv

OCE Business Services,

Defendant-Appellee.
______________________________________________

For Appellant: GLEN M. CLAYBORNE, pro se,
Brooklyn, New York.

For Appellee: CLIFFORD R. ATLAS, MARJORIE
KAYE, JR., Jackson & Lewis LLP,
New York, New York.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court is AFFIRMED.
 Plaintiff-Appellant Glen M. Clayborne, pro se, appeals from the judgment of the United

States District Court for the Southern District of New York (Wood, J.), granting summary

judgment to Appellee on Appellant’s employment discrimination claims brought pursuant to

Title VII of the Civil Rights Act of 1964. We assume the parties’ familiarity with the facts and

procedural history.

Upon a liberal construction of his brief, Appellant appears to be challenging summary

judgment on his claims of unlawful termination. He does not assert in this Court any arguments

that: (1) his 2004 performance evaluation was retaliatory; (2) the comments made by area

supervisors and his assignment to unfavorable tasks amounted to a hostile work environment;

(3) he was assigned unfavorable tasks as retaliation; or (4) any claims arising prior to March

2004 were timely. Thus, we find those claims and arguments are waived on appeal. See

LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that, when a litigant

raises an issue before the district court but does not raise it on appeal, it is abandoned, and that

this rule may be applied to pro se litigants). The only issue remaining on appeal is whether

Appellant’s termination was an act of discrimination and/or retaliation.

A district court’s grant of summary judgment is reviewed de novo, construing the

evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). To establish a claim of discrimination

based on race in a Title VII action, the burden shifting analysis under the McDonnell-Douglas

framework applies. See Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008); McGuinness

v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). Thus, a plaintiff must establish an initial prima

facie claim of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

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(1973). The burden of production then shifts to the employer to demonstrate a legitimate,

nondiscriminatory purpose for the employment decision. Id. Once the employer has met this

burden, the burden shifts back to the plaintiff to demonstrate, by a preponderance of the

evidence, that the nondiscriminatory reason was merely a pretext for discrimination. Id. at 804-

05. The ultimate burden of persuasion is always on the plaintiff, who must demonstrate that the

employer’s action was prompted by an impermissible motive. See St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511-12, 518 (1993).

Here, as explained in more detail in the well-reasoned report and recommendation of the

magistrate judge and the decision of the district court, Appellant did not establish a prima facie

case and did not carry his burden of establishing that the reason proffered by Appellee OCE

Business Services (“OBS”) for the termination, i.e., a reduction in the work force, was a pretext

for discrimination. We also find to be without merit the Appellant’s new assertions in his brief:

(1) that OBS had a holiday party shortly after his termination sheds doubt on OBS’s claim that it

needed to cut its work force; and (2) that his manager, Brian Gurriere, had placed him in a

permanent position in the accounting department undercuts the claim that the accounting

department could not afford Appellant’s salary.

First, Appellant did not present the holiday party argument in the district court. This

Court generally will not consider an issue raised for the first time on appeal. See Singleton v.

Wulff, 428 U.S. 106, 120-21 (1976); see also Virgilio v. City of N.Y., 407 F.3d 105, 116 (2d Cir.

2005), and Appellant has not established manifest or obvious injustice sufficient for us to

exercise our discretion to consider the issue, see Thomas E. Hoar, Inc. v. Sara Lee Corp., 900

F.2d 522, 527 (2d Cir. 1990). Even if the allegation were to be considered, Appellant presented

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no evidence to support his assertion that OBS had an employee holiday party or any evidence to

connect the expense of a holiday party to OBS’s need to cut its work force due to the loss of a

client. The unsupported allegation is insufficient, therefore, to create a genuine issue of material

fact to defeat a summary judgment motion. See Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d

Cir. 1995) (“[M]ere conclusory allegations or denials in legal memoranda or oral argument are

not evidence and cannot by themselves create a genuine issue of material fact where none would

otherwise exist.” (internal quotation marks omitted)); see also United States v. 15 Black Ledge

Drive, 897 F.2d 97, 102-03 (2d Cir. 1990).

Next, to the extent Appellant argues that he was not a floating manager, he appears to

assert that (1) he should not have been terminated with other floating managers; (2) Guerriere

told him that he was terminated because the accounting department could not afford him; and

(3) the reason given for his termination was false because Guerriere knew his salary before

placing him in the position in the accounting department. Appellant acknowledged in his

deposition, however, that at the time of his termination he was a floating manager, and he

provided no evidence to establish that he held a permanent position in the accounting

department. In addition, Appellant’s latest performance evaluation stated that he was a floating

manager. Conclusory allegations cannot create a genuine issue of fact, see Fletcher, 68 F.3d at

1456, nor may a party “create an issue of fact by submitting an affidavit in opposition to a

summary judgment motion that, by omission or addition, contradicts the affiant’s previous

deposition testimony,” Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996); see

also Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997). The undisputed evidence was that

Appellant was a floating manager, and the unsupported assertions that Appellant held a

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permanent position and that he was terminated under the pretext that the accounting department

could not afford his salary are insufficient to create a genuine issue of fact. Even if Appellant

were able to establish that he held a permanent position and that OBS’s reason for his

termination was therefore false, he provided no evidence to show that the real reason for his

termination was discrimination. See Fisher v. Vassar College, 70 F.3d 1420, 1433 (2d Cir.

1995) (explaining that, to establish pretext, the plaintiff must show both that the reason was false

and that discrimination was the real reason).

We have reviewed Appellant’s remaining arguments and find them to be without merit.

For the reasons stated above, the judgment of the district court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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